Residency Not Barred by Visits Outside U.S. : Immigration Bill Allows Some Absences

Jose Perez and his wife, Celia, moved from Mexico to Redwood City, Calif., in the mid-1970s and lived there continuously until 1980, when their young child died and they returned to Mexico to bury him.

Little did they know that the trip would be used against them four years later during their struggle to stay in the United States.

The Perezes sought residency status based on living here continuously for seven years. But an Immigration and Naturalization Service judge ruled in July, 1985, that their brief absence interrupted their stay and made them deportable.

Now, the immigration bill that President Reagan is expected to sign into law soon has given hope to the Perezes, whose case is on appeal, and thousands like them.

The bill says that families like the Perezes cannot be deported (provided that they meet other criteria) even if they left the country, as long as the absence was “brief, casual and innocent and did not meaningfully interrupt the continuous physical presence.”

‘Innocent’ Absence OK

The new provision, which addresses such “suspension of deportation,” is separate from the one that grants amnesty to people who have lived here illegally since before 1982. But both provisions make it clear that “brief, casual and innocent” absences are permissible in the process of establishing residency.

The legislation effectively overturns a 1984 Supreme Court decision, which narrowly interpreted a 1952 immigration law as prohibiting any absence.

The case, INS vs. Phinpathya, involved a Thai woman, Padungsri Phinpathya, who was ordered deported because she interrupted her U.S. residency with a three-month trip to Thailand. The case became the basis for a rash of INS rulings against undocumented aliens seeking to remain in the United States.

In an interview from San Francisco, Marc Van Der Hout, attorney for the Perezes, said the immigration judge in their case “said he felt bound by Phinpathya. I think it’s outrageous.”

The INS estimates that there are about 15,000 such cases a year. Immigration experts say only about 300 succeed in getting their deportations suspended.

Character, Hardship

In addition to the seven-year residency requirement, people seeking to avoid deportation must also show that they are of good moral character and that their deportation would cause “extreme hardship” for them or their families.

The Perezes have three other children, ages 10, 4 and 2--all U.S. citizens. Because their parents would take them to Mexico if they were deported, the children would be forced to live in an alien environment to which they could not adequately adjust, their attorney asserts. Also, Van Der Hout said, the two parents--he is a construction worker and she is a housekeeper--have established strong community and personal ties here.

People fall into deportation proceedings in many ways. Some come into the country on legal visas, which expire, and they overstay. Others simply get caught by the INS after entering illegally.

The Perezes were under a legal status conferred temporarily on hundreds of thousands of people nationwide but revoked in 1982 after an INS ruling.

Many Visit

Experts in immigration law say the narrow Supreme Court decision made it virtually impossible to get the already elusive suspensions because so many people make short visits across the borders--often for funerals or to see sick relatives.

Warren Leiden, executive director of the American Immigration Lawyers Assn., said that “this change is a tremendous boon because it returns the law to what it was” before the high court ruling. Under the Supreme Court interpretation, he said, “literally falling over backwards” into Mexico could be cited as grounds for refusing suspension of deportation.

A congressional aide familiar with the new legislation said the intent of Congress was to restore a more flexible interpretation to the continuous residency provision. “Most members basically felt the Supreme Court was harsher than what INS had been interpreting,” the aide said.